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Lord Thomas of Gresford: It appears to be my responsibility to reply to what has again been a very lengthy and interesting debate. All I sought was to insert the words "specified in subsection (3)" into Clause 1. One hour and 57 minutes later, I am on my feet again.

Some very important issues have been raised. We have gone over them in a rather roller-coaster way. One of the most important was that raised by my noble friend Lord Phillips a short time ago: the applicability of Article 6, the fair trial provisions to the procedures proposed in this Bill. As I said earlier, in 2001, we said that the provisions then being introduced in the Anti-terrorism, Crime and Security Act would not pass the European convention test. Three years later, we were proved right. We say today that the provisions of process suggested in this Bill will not pass the European convention test.

The noble Lord, Lord Blackwell, referred to the question of allegations being shown to the suspect. A suspect may be made subject to a control order without any knowledge of the allegations or evidence—that is
 
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what the Bill says—nor even the reasons for it. More than that—we have not got to it yet, but I am sure that we will tomorrow—

Noble Lords: Oh!

Lord Thomas of Gresford: Time stands still in this place. I meant to say, on Monday.

In Amendment No. 79—which I think was referred to this morning—the noble Baroness, Lady Scotland, is proposing that the obligations may be imposed by a control order whether or not the,

So he does not know the allegations, he does not know the evidence, he does not know the reasons, and the obligations may have nothing to do with what is suggested against him. So he cannot even infer why these obligations are imposed upon him.

I think that we will return to the question of the standard of proof that has been exercising the noble Lords, Lord Carlisle of Bucklow, Lord Plant and Lord Judd. We will no doubt come back to that word "practicality". The standard of proof proposed in these proceedings, particularly for non-derogating orders, cannot possibly satisfy Article 6 when the determination of the civil obligations—never mind the criminal aspects of it—is in question.

Other matters of evidence have been discussed in the course of this debate. My noble friend Lord Goodhart drew attention to Clause 1(3)(n) and (o) about interrogation. A person can be interrogated by anybody and forced to answer questions. That raises questions of privilege—which the noble Duke, the Duke of Montrose, referred to—self-incrimination and admissibility.

At the back of this Bill, we see in the schedule that the Lord Chancellor is to have power to determine the nature of the evidence that can be produced in control order proceedings. Normally, where evidence is produced from a suspect by reason of a threat—which in this case would be up to five years' imprisonment if he did not answer the question—it would not be admissible in a criminal court. That has been determined quite recently in Strasbourg in relation to evidence produced in board of trade inquiries.

What about the rules that the Lord Chancellor is going to propose here? Will the necessity, the state of security and so on, demand that evidence obtained forcibly under interrogation and with the threat of five years' imprisonment be admissible before any court considering the orders?

The noble Lord, Lord Kingsland, has referred to matters which should appear on the face of the Bill, such as the requirement that the Director of Public Prosecutions should be consulted and give his view on whether a prosecution is possible before any order is made. What is wrong with that? We are told that this control order is at the end of the line. Why should the person who makes the order, whether he is the
 
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Secretary of State or a judge in court, not be assured by an independent person that the evidence is insufficient for prosecution? What can happen—this is really what I am afraid of—is a lazy imposition of a control order without proper investigation which would produce the necessary evidence: "Surveillance is too expensive in this case"; "Slap on a control order"; "We do not require a high standard of proof"; or, "We are not required to tell him whether we have any proof".

The noble Lord, Lord Kingsland, also referred to the offence of committing an act which might lead to terrorist activity, or which is connected with terrorist activity. I imagine it might take about an hour to draft something that would be suitable and would pass muster, as opposed to this Bill. This Bill, with all the wording and verbiage in it, was put together in a matter of a day or two. But, no, the noble Baroness, Lady Scotland, said that the Government cannot do that because it has to be "carefully prepared, carefully scrutinised and debated at length"—one offence.

Here we are having thrust down our throats all these provisions—the breach of 800 years of legal history and so on. I will not get rhetorical about it—or emotional about it, if it comes to that. But when they say, "Well, we cannot put an offence on the face of the Bill because it has got to be carefully prepared", it makes me smile.

My amendment is simply specified in subsection (3). All we were trying to do was to confine the making of an order to the grounds that are set out; grounds that we have discussed and debated.

The noble Lady, Lady Saltoun, pointed out how draconian and limiting, for example, paragraphs (c) to (g) were. But the Government will not have it. So, what is there on the face of the Bill? There is an absolute and unfettered power for the Secretary of State to impose any obligation whatever upon any person without limit of time. All he has to do is, after that, to go for judicial review to see whether he has followed the procedures properly. The Bill really is a disgrace. We will come back to the matter, but for the moment I beg leave to withdraw my amendment.

Amendment No. 3, as an amendment to Amendment No. 1, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

On Question, Amendment No. 1 agreed to

The Deputy Chairman of Committees (Viscount Simon): Amendments Nos. 6 to 15 have been pre-empted by the agreement to Amendment No. 1.

[Amendments Nos. 6 to 31 not moved.]

Lord Falconer of Thoroton moved Amendment No. 32:


 
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The noble Lord said: The noble Lord, Lord Thomas of Gresford, rightly points out that the amendment has not been debated. As a drafting matter parliamentary counsel thinks that the word "Every" should be deleted, and subsection (4) should read:

Although the noble Lord is absolutely right that it had not been debated, I would hope that the noble Lord—

Lord Thomas of Gresford: The amendment is grouped with Amendment No. 35, which is a matter of some substance and where we want some explanations. As the two are together, I think that we should hear them together. So that is where we are.

Lord Falconer of Thoroton: I am behind by about 14 editions of the groupings list. I apologise for that.

Lord Thomas of Gresford: We are on the mauve version.

Lord Falconer of Thoroton: I apologise. Amendment No. 35 deletes the words,

Section 2 is about to be deleted by a subsequent amendment. That is why it is necessary to make that second amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 33 and 34 not moved.]

Lord Falconer of Thoroton moved Amendment No. 35:

On Question, amendment agreed to.

[Amendments Nos. 36 to 39 not moved.]

The Duke of Montrose moved Amendment No. 40:

The noble Duke said: The amendment seeks to clarify the type of conduct that will fall within the definition of terrorism-related activity. The reason is that Clause 1(8) provides the definition of terrorism-related activity for the Bill's purposes. Subsection (8)(b) currently lists as part of that definition,

acts of terrorism. The amendment seeks to clarify that the innocent actions of a person who unwittingly facilitates terrorist activities will not be caught by that definition and that such a person would not therefore be subject to a control order.

To give an illustration, when the Stone of Scone was removed from Westminster Abbey my grandfather received a call to see whether he had anything to do with the nationalist sentiments involved. In fact he had not, but he was a little supportive of the idea. The question could occur with some member of the family—wee Jimmy, or whoever it was—quite innocently helping to weave a bit of cloth that might
 
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do for the fuse for a bomb, or something like that: was it knowingly done; or was it simply being friendly and nice to the person who was the perpetrator? It is important that we consider the question. I beg to move.


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